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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ENUGU JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: JUNE 30, 2011 SUIT NO. NIC/EN/07/2009 BETWEEN 1. Basil Ositadinma Mbanefo 2. M. Achike Achukwu, Esq. 3. Anthony Obaze 4. Victor Obianyo 5. Mrs. Joe Okafor 6. Emma Nwadije 7. Lorreta Ikwuka 8. Nnabuife Obienu (For themselves and as representing the Judiciary Staff Union of Nigeria (JUSUN), Anambra State Branch, excluding Evangelist Festus Ozioma Chirah, Emma Nnaemeka, Columbus Onwuzuligbo, Ikechukwu Okechukwu, Emma Ezeike and Chike Iweka Jnr.) - Claimants AND Judicial Service Commission of Anambra State - Defendant REPRESENTATION Chudi Obieze, Esq., for the claimants. Mrs. V. Onwuka, Esq., for the defendant. JUDGMENT The claimants instituted this suit vide a complaint dated and filed on the 3rd day of December, 2009, claiming the following reliefs:- 1. A declaration that no member of [the] Judiciary Staff Union of Nigeria (JUSUN), Anambra State Branch, qualifies as “a projection of management within a management structure” within the definition of that phrase by section 3(4), of the Trade Unions Act Cap. 437 LFN 1990. 2. A declaration that section 3(3) and (4) of the Trade Unions Act Cap. 437 LFN 1990 is in conflict with section 40 of the 1999 Constitution of Nigeria as well as section 9(6)(a) and (b) and (i) and (ii) of the Labour Act Cap. 198 LFN 1990 and as such is null and void, and of no effect whatsoever. 3. A declaration that the decision contained in the letter dated 4th May 2009, JSC/AN/AD.87/1/484, taken by the Anambra State Judicial Service Commission is in breach of sections 36(1) and (2) and 40 of the 1999 Constitution of Nigeria as well as section 9(6)(a) and (b) and (i) and (ii) of the Labour Act Cap. 198 LFN 1990, having impugned on the claimants’ right of fair hearing and freedom of association. 4. A declaration that the decision contained in the letter dated 4th May 2009, JSC/AN/AD.87/1/484, taken by the Anambra State Judicial Service Commission is intended to, and does in fact, prejudice and render nugatory the outcome of Suit No. AG/3/2009: Evangelist Festus Chirah v. Basil Osita Mbanefo & 16 ors pending at the High Court of Anambra State sitting at Ekwuluobia. 5. An order setting aside the decision of the Anambra State Judicial Service Commission as contained in the letter dated 4th May 2009 with Reference No. JSC/AN/AD.87/1/484. Accompanying the claim is a 33-paragraphed statement of facts, a list of witnesses to be called and a list of 22 documents to be relied upon at the trial. Upon being served with the complaint and claims, the defendant entered appearance by filing the memorandum of appearance and a 24-paragraphed statement of defence together with a list of 8 documents to be relied upon at the trial. The defendant indicated in its list of witness that it has no witness meaning that it will not be calling any witness in this matter. At the trial, the claimants called one witness, whilst the defendant did not call any witness. The sole witness for the claimants gave evidence on the only point of divergence found on the facts pleaded, which is the scope of the duties of the claimants as regards prayer 1 on the complaint. The claimants framed three issues for the determination of this court, namely – 1. Are the claimants “a projection of management within a management structure” within the definition of that phrase by section 3(4) of the Trade Unions Act Cap. 437 LFN 1990? 2. Whether section 3(3) and (4) of the Trade Unions Act Cap. 437 LFN as well as the decision contained in the letter dated 4th May 2009, JSC/AN/AD.87/1/484, ARE NOT IN CONFLICT WITH sections 36(1) and (2) and 40 of the 1999 Constitution as well as section 9(6)(a) and (b) and (i) and (ii) of the Labour Act Cap. 198 LFN and thereby null and void. 3. Whether the decision contained in the letter dated 4th May, 2009, JSC/AN/AD.87/1/484, taken by the defendant is not intended to, and does in fact, prejudice and render nugatory the outcome of the Suit No. AG/3/2009: Evangelist Festus Ozioma Chirah v. Basil Osita Mbanefo & 16 ors pending at the High Court of Anambra State sitting at Ekwulobia. On issue 1, i.e. whether the claimants are “a projection of management within a management structure” within the definition of that phrase by section 3(4) of the Trade Unions Act Cap. 437 LFN 1990, the claimant contended that the defendant, by its letter dated 4th May, 2009, with reference No. JSC/AN/AD.87/1/484 directed the Chief Registrar, High Court, Judiciary Headquarters Awka, to implement the provisions of the Trade Unions Act with respect to “all members of staff who are in projection of management”. The letter further directed that – (ii) Every management Staff who had hitherto been involved in leadership position in any trade union shall cease to act as such and resign from such post henceforth. (iii) Every management staff shall take this directive as the final warning as regards this issue. (iv) This directive shall be specifically forwarded to Mr. B. O. Mbanefo, Head of Administration Judiciary Headquarters, M. A. Achukwu, Esq., Deputy Director Litigation and any other staff in projection management in the State Judiciary. (v) Evidence of compliance of each of the above named persons and others in respect of (ii) above shall reach the Judicial Service Commission within 2 weeks from today. (vi) Please be guided by the above directives. The claimants then reproduced the provisions of section 3(3) and (4) of the Trade Unions Act Cap. 437 LFN which state as follows – (3) No staff recognized as a projection of management within the management structure of any organization shall be a member of or hold office in a trade union, whether or not the members of that trade union are workers of a rank junior, equal or higher than his own, if such membership or the holding of such office in the trade union will lead to a conflict of his loyalties to either the union or to the management. (4) For the purposes of subsection (3) of this section, a person may be recognised as a projection of management structure if his status, authority, powers, duties and accountability which are reflected in his conditions of service are such as normally inhere on a person exercising executive authority, whether or not delegated, within the organization concerned. To the claimants, the sole witness for the claimants is Mr. Basil Osita Mbanefo, a Deputy Director of Administration, Grade Level 15, in the Anambra State Judiciary. He testified that he was employed as a clerk and by virtue of promotions, got to where he is now. He gave evidence that there is no service scheme in the Anambra State Judiciary and that he does not know the service scheme, if any, under which he was employed. He told the Court the scope of his duties as a Deputy Director Administration Department, which is to co-ordinate the administrative function within the administration department as directed by the Chief Registrar. As a Deputy Director Administration, the witness takes directives in matters of administration from the Chief Registrar and either implements same or directs the implementation of the directives from the Chief Registrar and thereafter sends a feed back to the Chief Registrar. He also told the court that there is no office above his own occupied by any member of the Judiciary Staff Union of Nigeria (JUSUN). The claimants continued that the evidence given above was not challenged and/or controverted in cross-examination or by adverse evidence from the defendant. In fact, that the defendant is deemed in law to have accepted as true the whole evidence proffered by the claimants. This is because they did not call any evidence and rested their case solely on the evidence presented by the claimant. The claimants then called the attention of the court to the fact that the defendant is the employer of the claimants, and is in a position to state and give evidence on the conditions of service/scheme of service of the claimants. That if there is any document existing on that, the defendant ought to be in possession of it. The non-production by the defendant of any such document shows that none exists. That the court is, therefore, left with no other option than to accept the evidence given in the box by the sole witness, on the scope of his duty. Additionally, the claimants argued that on the state of pleadings before this court, the defendant is deemed in law to have accepted the fact that the claimants are not projection of management. In paragraph 34 of the statement of facts, the claimants pleaded that they do not exercise executive authority and do not initiate any act or exercise on their own, but simply carry out instructions or directives, that may be minuted to them from time to time, by the Chief Registrar. That in response to this, the defendant in paragraph 19 of its statement of defence, merely stated that the 1st , 2nd and 4th claimants are projection of management of the Anambra State Judiciary, without pleading how and what they do. This amounts to negative traverse of a specific pleading, which in law does not amount to a rebuttal. That the failure by the defendant to lead evidence on that amounts to an admission of the case of the claimants, referring to Asike v. Atuanya [2008] 17 NWLR (Pt. 1117) 484 at 519 paras D – E, where the Court of Appeal, per Denton-West, JCA, held – The Respondent has not bothered to prove the averments contained in this pleadings and has not taken the necessary steps to join issues with the Appellants in respect of their pleadings in paragraph 27 of their statement of claim and since it is unchallenged, the oral evidence of the appellants is deemed sufficient proof of their case. The claimants then submitted that section 3(4) of the Trade Unions Act identifies who a projection of management within a management structure is; and such a person is one whose status, authority, powers, duties and accountability, which are reflected in his conditions of service, are such as normally inheres in a person exercising executive authority (whether or not delegated) within the organization concerned. To the claimants, it is in evidence and not challenged by the defendant, that the Anambra State Judiciary has no scheme of service and as such it is only the evidence of Mr. Basil Osita Mbanefo that will show this Court his conditions of service, which he has given. That from his evidence, he does not exercise executive authority. According to the Advanced Learners Dictionary, the word “authority” means power to give orders and make others obey; whilst “executive” means concerned with the management and carrying out of plans, decisions, etc. “Executive authority”, therefore, means having power to carry out decisions and ensure it is complied with. With respect to section 3(3) of the TUA, the claimants submitted that a projection of management within a management structure is a staff that has “power” to carry out decisions and exact obedience, within that management structure. That the person or office that fills that bill, within the Anambra State Judiciary, is with respect, the Chief Registrar. That apart, the duties of the sole witness, as given by him in evidence, show that there will be no conflict in loyalties owed by him to either the union or the management of the Judiciary. The claimants continued that they are not unmindful of the fact that the Act qualified the words “Executive” with the words, “whether or not delegated”. That when that power is delegated the donee will be exercising that power, without reference to the donor, at every point, for approval. That the evidence given by the sole witness, shows that his duty is simply to carry out instructions passed down by the Chief Registrar and thereafter send feed backs to the Chief Registrar. There are no delegated powers stipulated for him to exercise; rather, there is a stream of instructions passed down intermittently on a daily basis. This, to the claimants, applies to the highest office in the Anambra State Judiciary held by any member of JUSUN. That if the highest officer member of JUSUN, is not a projection of Management within a management structure, then those under him, who are mainly clerical officers, typists, messengers and cleansers, cannot be so described. For those on his level, the pleadings and evidence show that they are in the same situation as the witness. The claimants, therefore, submitted that they are not “a projection of management within a management structure”, within the definition of that phrase under section 3(4) of the TUA, urging the court to so hold. Issue 2 relates to the question whether section 3(3) and (4) of the Trade Unions Act Cap. 437 LFN, as well as the decision contained in the letter dated 4th May 2009 JSC/AN/AD.87/1/484, are not in conflict with sections 36(1) and (2) and 40 of the 1999 Constitution of Nigeria, as well as section 9(6)(a) and (b) and (i) and (ii) of the Labour Act Cap. 198 LFN and thereby null and void. To the claimants, section 3(3) and (4) of the TUA and the decision of the defendant contained in their letter of 4th May 2009, are in conflict with the fundamental rights of the claimants as enshrined in sections 36(1) and (2) and 40 of the 1999 Constitution as well as the Labour Act Cap. 198 LFN; and by virtue of their being in conflict, they are thereby null and void. The claimants referred the court to section 3(3) and (4) of TUA and the defendant’s letter of 4th May 2009. To the claimants, section 40 of the 1999 Constitution provides as follows – Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any Political Party, trade union or any other association for the protection of his interests: Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to Political Parties to which that Commission does not accord recognition. That section 40 of the 1999 Constitution makes it crystal clear that the claimants have the constitutional right to belong to a trade union for the protection of their interests. Even if the claimants were to be projection of management staff within a management structure as provided by section 3(3) and (4) of the TUA, which the claimants did not concede to, the claimants still submitted that those provisions of the TUA do not have the capacity and power to stop and/or terminate the claimants’ membership of JUSUN in view of section 40 of the 1999 Constitution. That the TUA cannot stop a group of persons from belonging to a trade union when section 40 of the Constitution gives them that right. To the claimants, section 3 (3) and (4) of the TUA is not in the interest of public order and, therefore, cannot come under the derogation provided in section 45(1)(a) and (b) of the 1999 Constitution. That they are strengthened in this view by the provisions of section 9(6)(a) and (b) and (i) and (ii) of the Labour Act Cap. 198 LFN, which state as follows – No contract shall – a) make it a condition of employment that a worker shall or shall not join a trade union or shall or shall not relinquish membership of a trade union; or b) cause the dismissal of, or otherwise prejudice, a worker - (i) by reason of trade union membership, or (ii) by reason of trade union activities outside working hours or, with the consent of the employer, within working hours. By paragraphs 14, 15, 18, 19 and 20 of the statement of facts, the claimants pleaded that one Evangelist Festus Ozioma Chirah wrote a petition dated 26th March 2006 to the defendant, referring the defendant to section 3(3) and (4) of the TUA and requesting the defendant to enforce those provisions on Messes B. O. Mbanefo, M. A. Achukwu and Victor Obianyo, the 1st, 2nd and 4th claimants herein. That with this letter in its kitty, the defendant sat on Friday the 24th of April 2009 and took the decision contained in their letter of 4th May, 2009. The defendant did not invite the claimants and the claimants were not heard before the decision was taken affecting their membership of the union, JUSUN. That the claimants applied to the defendant to be issued with a certified true copy of their proceedings of Friday 24th April, 2009 so as to show this Court how they conducted the proceedings without recourse to the rules of fair hearing. That the defendant refused to give the claimants the copy of the proceedings, a public document. To the claimants, the refusal by the defendant to produce the copy of their proceedings, which by virtue of the Evidence Act in sections 111, 112, and 113 it is obligated to produce and give to the claimants, show that it has something to hide. That the act of the defendant in taking a decision affecting the claimants, behind their backs and without offering them opportunity of being heard, is contrary to section 36(1) and (2) of the 1999 Constitution that guarantees the claimants fair hearing. The claimants concluded that from all the foregoing, they are of the view that section 3(3) and (4) of the TUA as well as the decision contained in the letter dated 4th May 2009 with reference number JSC/AN/AD.87/1/484 are in conflict with sections 36(1) and (2) and 40 of the 1999 Constitution as well as section 9(6) (a) and (b) and (i) and (ii) of the Labour Act Cap. 198 LFN. The claimants then urged the court to so hold. Issue 3 relates to the question whether the decision contained in the later dated 4th May, 2009 with Ref. No. JSC/AN/AD.87/1/484 taken by the defendant is not intended to, and does in fact prejudice and render nugatory, the outcome of the Suit No. AG/3/2009: Evangelist Festus Ozioma Chirah v. Basil Osita Mbanefo & ors pending at the High Court of Anambra State sitting at Ekwulobia. To the claimants, the defendant’s letter dated 4th May, 2009, was aimed by them at assisting Evangelist Festus Ozioma Chirah to achieve what he set out to do. That Evangelist Chirah, in his Suit No. AG/3/2009, was claiming for the removal of the claimants from office then. That he wrote a letter dated 26th March, 2009 asking the defendant to remove the claimants based on section 3(3) and (4) of the TUA. That by virtue of the letter dated 26th March, 2009, the defendant now wrote the letter dated 4th May 2009 containing the decision of the defendant, with respect to section 3(3) and (4) of the TUA. The claimants then submitted that the letter of 4th May 2009, when and if enforced, has effectively granted the claims of the said Evangelist Festus Ozioma Chirah. The claimants then urged the court to so hold. The claimants concluded by urging the Court to grant the reliefs they seek, same having been proved. In reaction to the claimants’ written address, the defendant filed its own on April 20, 2011. To the defendant, the facts of this case arose as a result of the incessant strike action embarked upon by members of the Judiciary Staff Union of Nigeria (JUSUN) Anambra State Branch even without proper notice as required by the Trade Unions (Amendment) Act 2005 and the JUSUN Constitution. That on one of such occasions the National Executive Council of JUSUN issued an ultimatum on 8th November, 2008 and commenced strike action on 1st December, 2008. After the National body of JUSUN suspended the strike, the Anambra State Chapter of JUSUN commenced their strike action on 9th January, 2009. In a letter dated 15th January, 2009 written to the then Chief Judge, the National Body of JUSUN stated that the strike action going on in Anambra \state at that time was not in conformity with the directive of the National Secretariat of JUSUN and has no blessing of the National Body, referring to Annexure 2 in the statement of defence of the defendant. The defendant continued that during the above stated strike action, the defendant had a meeting in the Chambers of the Hon. Chief Judge on 22nd January, 2009. That it took the intervention of the Hon. Chief Judge to order the police to break the lock at the gate of Judiciary Headquarters and the defendant’s complex to enable top management staff gain access into their offices to render skeletal service and for the defendant to hold its meetings. While this strike was going on, the key management staff or those in managerial position in the Judiciary of Anambra State were also the leaders of the striking workers. That it is this state of affairs that prompted the defendant in its 183rd meeting to look into the provisions of the Trade Unions Act as regards the involvement in trade union activities by staff recognized as a projection of management and directed the compliance with the provisions of the Trade Unions Act in the letter dated 4th day of May, 2009 with reference NO. JSC/AN/AD.87/1/484 annexed to the processes filed by both parties. That immediately the directives of the defendant reached the 1st and 2nd claimants, the Judiciary workers again embarked on indefinite strike in that the 1st and 2nd claimants would not relinquish their positions as Chairman and Legal Adviser of JUSUN, Anambra State pursuant to the defendant’s directive. The defendant continued that in order for industrial peace to reign in the Judiciary, the defendant in a letter dated 23rd June, 2009 Reference No. JSC/AN/AD.87/1/490 directed the suspension of the implementation of its letter of 4th May, 2009, and directed the claimants to seek the interpretation of the letter of 4th May, 2009 as regards section 3(3) and (4) of the Trade Unions Act as amended vis-à-vis section 40 of the 1999 Constitution. That the claimants instead of seeking for the interpretation of section 3(3) and (4) of the Trade Unions Act have come to court seeking the declaratory reliefs as set out in their claims and an order to set aside the decision of the defendant embodied in its letter of 4th May, 2009 with Reference No. JSC/AN/AD.87/1/484. The defendant then framed 3 issues for the determination of this court, namely – 1. Whether based on the posts occupied by the 1st and 2nd claimants in the Anambra State Judiciary they qualify as a projection of management within the management structure of that organization. 2. Whether section 3(3) and (4) of the Trade Unions Act Cap. T14 LFN 2004 as amended as well as the decision of the defendant as contained in the letter dated 4th May, 2009, with Reference No. JSC/AN/AD.87/1/484 violated the fundamental rights of the 1st and 2nd claimants as entrenched in sections 36(1) and (2) and 40 of the 1999 Constitution as well as section 9(6)(a) and (b) and (i) and (ii) of the Labour Act Cap. L1 LFN 2004. 3. Whether the decision contained in the letter dated 4th May, 2009, Ref No. JSC/AN/Ad/87/1/484 is not intended to, and does not in fact prejudice and render nugatory the outcome of the Suit No. AG./3/2009 – Evangelist Festus Ozioma Chirah v. Basil Ositadinma Mbanefo & 16 ors pending at the High Court of Anambra State sitting at Ekwulobia. Regarding issue 1 i.e. whether based on the posts occupied by the 1st and 2nd claimants in the Anambra State Judiciary they qualify as a projection of management within the management structure of that organization, the defendant drew the attention of the court to the contents of the decision of the defendant as contained in the letter dated 4th May, 2009 which is the bone of contention particularly paragraphs (ii) and (iv) which are reproduced hereunder for ease of reference – (ii) That every management staff who had hitherto been involved in leadership position in any trade union shall cease to act as such and resign from such post henceforth. (iv) That this directive shall be specifically forwarded to Mr. B. O. Mbanefo Head of Administration, Judiciary Headquarters, M. A. Achukwu Esq., Deputy Director, Litigation and any other staff in projection of management in the state Judiciary… (underlining is the defendant’s). To the defendant, the question that follows is how this directive, made specifically to the 1st and 2nd claimants on record, concerns the members of the Anambra State Judiciary Staff Union (JUSUN) as to bring this action in a representative capacity. In answer to this question, the defendant submitted that this action is improperly constituted as averred in paragraph 21 of the statement of defence, as the letter under contention was specifically directed to the 1st and 2nd claimants and any other staff in any trade union in the projection of management and not to members JUSUN who brought this action in a representative action. The 1st claimant also admitted in his evidence under cross-examination that the claimants instituted this action because of the defendant’s letter of 4th May, 2009, Reference No. JSC/AN/AD.87/1/484. The defendant then contended that the claimants as presently constituted herein as members of JUSUN have no dispute with the defendant. The claimants referred the court to the case of Attorney-General of the Federation v. Attorney-General, Abia State & ors [2001] FWLR (Pt. 64) 202 at 263 where Karibi-Whyte, JSC while referring to the case of Christopher Okafor v. B. Nnodi [1963] NNLR 42 stated as follows – It is not sufficient if all a party has is a mere interest in the result of the action. This is because there must be a dispute between the parties giving rise to the right of action. To the defendant, therefore, the mere fact that the defendant wrote to the 1st and 2nd claimants to resign their leadership role in JUSUN for being a projection of management in the State Judiciary does not give JUSUN the right of action to seek a declaration that no member of JUSUN qualifies as a projection of management. The letter under contention is clear and unambiguous as to the persons the letter was directed to. Be that as it may, the defendant indicated that it would still like the court to make a pronouncement on the provisions of section 3(3) and (4) of the Trade Unions Act Cap. T14 LFN 2004 to be a guide not only to JUSUN, Anambra State but to all other trade unions nationwide. The defendant went on to submit that the 1st and 2nd claimants are a projection of management within the management structure of the Anambra State Judiciary. That the 1st claimant is the Head of Administration while the 2nd claimant is the Deputy Director, Litigation in the Anambra State Judiciary as stated in the said letter under contention and as admitted by the claimants in paragraph 19 of their statement of facts. That the 1st claimant in his evidence in chief, stated that there is no other office occupied by members of JUSUN above the directorate level. It, therefore, follows that the 1st and 2nd claimants are not disputing their posts in the State Judiciary. Their contention is that they are not a projection of management because they take directives from the Chief Registrar and thereafter send feedback to the Chief Registrar. According to the 1st claimant under cross-examination, a projection of management is an office that controls its funds and does not take directives from a superior authority. He further admitted that they have Personnel Management meetings and that he is a member of the Personnel Management Board. From the foregoing, the defendant submitted that there is no doubt that the 1st and 2nd claimants are senior officers in the management cadre of the Anambra State Judiciary. That the Trade Unions Act did not define what the phrase “projection of management” means. However, that Chief V. A. Odunaiya in his book, Law and Practice of Industrial Relations in Nigeria while discussing on who may unionize within an enterprise threw a light on the meaning of projection of management when he stated at pages 139 – 140 of his book as follows – There are just too many shades of opinion on the matter. However, this matter has been squarely dealt with by the Trade Unions (Amendment) Act. No. 22 of 1978 which provides that for the avoidance of doubt, no executive or senior staff shall be member of or hold office in a trade union whose members are workers of a rank junior to his own, but such executive or senior staff may form and be members of or hold office in trade unions of workers of equal or higher rank than his own. The Act defined an “executive or senior staff” as members of staff recognized as a projection of management, within the management structure, in terms of status, authority, powers, duties and accountability, as are reflected in the conditions of service and by virtue of which the membership of a trade union of junior staff grade may lead to a conflict of loyalties to the union or to the management. (Underlining is the defendant’s.) To the defendant, the claimants in their written Address made much ado that the defendant failed to prove that the 1st and 2nd claimants are a projection of management forgetting that the burden of prove lies on them. Section 137 of the Evidence Act provides that he who asserts must prove. The defendant in its letter under contention directed the 1st and 2nd claimants to resign from their leadership role in JUSUN, Anambra Chapter for the reason that they are a projection of management. They insisted that they are not on the flimsy reason that they take directives from the Chief Registrar. It is trite law that in civil cases, the primary burden is on the plaintiff to establish the facts that he relied upon in proof of his claims. The defendant referred to the case of Trade Bank PLC v. Chami [2004] All FWLR (Pt. 235) 178 at 152 – 153. That in Nigeria Bottling Co. Ltd v. Dada [2004] All FWLR (Pt. 205)231 at 250, the court held that the initial burden of proof is on the plaintiff who discharges it on the balance of probability or strictly. It is when he discharges the initial burden that the evidential burden shifts to the defendant. The defendant, therefore, submitted that the claimants who asserted that they are not a projection of management did not prove that assertion and the failure of the defendant to prove same or refusal to testify does not alleviate the primary burden of proof on the claimants to prove their case, referring to the case of Milima v. Goniram [2004] All FWLR (Pt. 228) 751 at 791. The defendant continued that there is also the contention of the claimants in their written address that the evidence given by the 1st claimant in his evidence in chief was not challenged or controverted in cross-examination or by adverse evidence from the defendant. The defendant conceded that facts not challenged or controverted under cross-examination is deemed admitted. However, that the claimants appeared to have lost sight of the exception in the state of the law where the claims of the claimants relate to declaratory reliefs. The law is trite and settled that courts do not make declarations of right either on admission or in default of defence. Where the court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by the evidence adduced by that party and not by admission in the pleadings. That the courts hold the necessity for this specific proof as arising from the fact that the court has the discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence, referring to the cases of Bello v. Iweka [1981] 1 SC 101 at 102, Elema v. Akenzuwa [2000] 13 NWLR (Pt. 683) 92 at 98 – 99 and Owudunmi v. Registered Trustees [2000] 6 SCNJ 399 at 432. In view of the foregoing, the defendant submitted that the claimants have woefully failed to prove their first relief for declaration that no member of Judiciary Staff Union of Nigeria (JUSUN) Anambra State Branch, qualifies as “a projection of management within a management structure” within the definition of that phrase under section 3(4) of the TUA and to hold that based on the posts occupied by the 1st and 2nd claimants as senior staff in the Anambra State Judiciary they qualify as a projection of management within the management structure of that organization notwithstanding the fact that they receive directives from the Chief Registrar. Issue 2 is whether section 3(3) and (4) of the Trade Unions Act Cap. T14 LFN 2004 as amended as well as the decision of the defendant as contained in the letter dated 4th May, 2009, with Reference No. JSC/AN/AD.87/1/484 violated the fundamental rights of the 1st and 2nd claimants as entrenched in sections 36(1) and (2) and 40 of the 1999 Constitution as well as section 9(6)(a) and (b) and (i) and (ii) of the Labour Act Cap. L1 LFN 2004. To the defendant, section 3(3) and (4) of the Trade Unions Act as well as the decision of the defendant contained in the letter under contention did not violate the fundamental rights of the claimants as entrenched under section 40 of the 1999 Constitution as well as section 9(6)(a) and (i) and (ii) of the Labour Act Cap L1 LFN 2004. The claimants had argued in their written address that they have the constitutional right to belong to a trade union for the protection of their interests and that section 3(3) and (4) of the Trade Unions Act, as amended, does not have the capacity and power to stop or terminate their membership of JUSUN in view of section 40 of the 1999 Constitution. On this, the defendant submitted that what the claimants failed to understand is that their freedom to belong to any trade union or association is not absolute as section 40 of the 1999 Constitution is subject to the derogation set out in section 45(1)(a) and (b) of the 1999 Constitution. To the defendant, it is in view of the proviso to section 45(1)(a) and (b) of the 1999 Constitution that section 40 of the Constitution cannot invalidate section 3(3) and (4) of the TUA as it is a law that is reasonably justifiable in a democratic society “in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons”. In other words, section 45 of the 1999 Constitution checks and balances the right of an individual and the need that such right does not infringe on the rights of others and that of the public. The defendant then referred the court to the cases of Erasmus Osawe v. The Registrar of Trade Unions [1985] 2 NSCC 768, The Registered v. Medical & Health Workers Union of Nig. [2008] 1 SCNJ 348 at 370 and National Union of Electricity Employees v. Bureau of Public Enterprises [2010] 2 SCJ 50 at 81. To the defendant, section 3(3) and (4) of the Trade Unions Act, as amended, is a law reasonably justifiable in a democratic society. Indeed, that the law was made recognizing the principle of maintaining freedom of association while avoiding such membership that will lead to conflict of interest either to the union or to the management, referring to National Union of Electricity Employers v. Bureau of Public Enterprises (supra) at page 82. Furthermore, that as long as section 45 of the 1999 Constitution permits the enactment of a law which runs counter to section 40 of the 1999 Constitution if enacted for the purpose of protecting the rights and freedoms of other persons, section 9(6)(a) and (b) and (i) and (ii) of the Labour Act LFN 2004 which is an existing law by virtue of section 315(1)(a) of the 1999 Constitution cannot be said to be inconsistent with the provision of section 40 of the 1999 Constitution. On the other hand, that it is also necessary to point out that the decision of the defendant made in the letter under contention did not direct the 1st and 2nd claimants not to belong to any trade union; rather the said letter directed them to resign from their leadership position as Chairman and Legal Adviser of Anambra State Branch of JUSUN. It is submitted that being a leader of a trade union is not a right protected under any provisions of the Constitution or any law whatever. That the claimants’ rights were never violated in any form as they are claiming. On the issue of the defendant taking a decision affecting the claimants based on the petition of one Evangelist Festus Ozioma Chirah, the defendant submitted that section 3(3) and (4) of the TUA, as amended, is an extant law which the defendant decided to direct its implementation due to the state of affairs in the Anambra State Judiciary. The claimants need to be heard before implementing an extant law which strikes a balance between the conflict of interest of a member either to the union or to the management. Again, the said letter complained of victimization and denial meted out to some members of staff and called for justice which the defendant never discussed or took any action on that petition. The defendant then urged the court to resolve this issue against the claimants and hold that their fundamental right of association was never breached as no law entitles the 1st and 2nd claimant to be a permanent Chairman and Legal Adviser respectively of JUSUN, Anambra State. Also that the court should hold that section 3(3) and (4) of the TUA, as amended, as well as section 9(6)(a) and (b) and (i) & (ii) of the Labour Act are not in conflict with the provisions of section 40 of the 1999 Constitution. Issue 3 relates to the question whether the decision contained in the letter dated 4th May, 2009, Ref No. JSC/AN/Ad/87/1/484 is not intended to, and does not in fact prejudice and render nugatory the outcome of the Suit No. AG./3/2009 – Evangelist Festus Ozioma Chirah v. Basil Ositadinma Mbanefo & 16 ors pending at the High Court of Anambra State sitting at Ekwulobia. The defendant urged the court to note all the allegations made by the claimants and the Hon. Chief Judge of Anambra State in paragraph 5, 6, 7, 8, 9, 10, 14, 15, 19 and 21 of the statement of facts without joining the said minions of the then Chief Judge and the Chief Judge himself knowing that he had retired from the office to enable these people admit or refute these allegations made against them. That the Supreme Court has variously held that parties against who allegations are made must be made parties to such action, referring to the case of Awoniyi v. The Registered Trustees of AMORC [2000] 6 SCNJ 141 at 148 – 149 However, that the defendant in their statement of defence denied in paragraph 17 that its decision contained in the letter under contention granted the claims of the plaintiffs in Suit No. AG/3/2009. That the reliefs sought in that case by the plaintiffs are clear and unambiguous; and for ease of reference, they are – (a) A declaration that the tenure of the 1st to the 11th defendants has elapsed since April 2008 having been elected for a term of three years in April, 2005. (b) A declaration that the appointment of the 12th to 16th defendants as electoral officers by the 1st to the 16th defendants is improper, unlawful, illegal and unconstitutional having regard to the JUSUN constitution. (c) An order of court restraining the 12th to the 16th defendants or any person or group. (d) An order of court compelling the 1st to the 11th defendants to account for all monies collected on behalf of the Judiciary Staff Union of Nigeria (JUSUN) Anambra State Chapter. (e) An order of court restraining the 1st to the 11th defendants from parading or continuing to parade themselves as Branch Executive Committee of the Judiciary Staff Union of Nigeria, Anambra State Chapter. (f) An order of court directing the 17th defendant the National President to conduct election into the vacant positions/offices of the Judiciary Staff Union of Nigeria. That from the reliefs sought by the plaintiffs, there is no way the decision of the defendant has determined the suit concerning the tenure of the claimants and the operation of JUSUN constitution. The defendant then urged the court to so hold and resolve this issue against the claimants. In conclusion, the defendant urged the court to dismiss this suit on the ground that it lacks merit and that the claimants have failed to prove the declaratory reliefs sought in their claim. The claimants reacted by filing their reply on points of law. Regarding issue 1, the defendant had argued that the letter of 4th May, 2009 was specifically directed at the 1st and 2nd claimants and not to the entire JUSUN, and, therefore, JUSUN does not have a right of action in this suit; thus contending that this suit is not properly constituted. In response, the claimants referred to item (1) in the said letter, which provides as follows – That the Anambra State Judicial Service Commission through this medium reminds all members of Staff who are in projection of Management that henceforth the provisions of the Trade Unions Act shall be strictly complied with. (Underlining is the claimants’). That the above shows that the letter was not addressed to the 1st and 2nd claimants only. Item (ii) in the said letter also provides – That every Management Staff who had hitherto been involved in leadership position in any trade union shall cease to act as such and resign from such post henceforth. (Underlining is the claimants’). To the claimants, item (ii) above confirms that the directive is directed to every staff and not just to the 1st and 2nd claimants. In fact, that even the item (iv) in the letter, upon which the defendant is resting its submissions, states, after the words “Deputy Director Litigation”, the following words: “and any other staff in projection of Management in the State Judiciary”. It is because of this, that JUSUN instituted this action for the court to determine whether any of its members is in “Projection of Management”. The claimants then submitted that this suit is properly constituted. The defendant had argued that the onus of proof that the claimants are not a “Projection of Management” lies on the claimants, and that the onus has not been discharged. In response, the claimants submitted that the claimants by unchallenged evidence proved that they are not a “Projection of Management”. That the onus, therefore, shifted to the defendant to prove that the claimants are. To the claimants, it is because they are aware that their reliefs include declarations that they insisted on leading evidence, which they did and which evidence was not challenged by the defendant. Regarding issue 2, the defendant had contended that section 3(3) and (4) of the Trade Unions Act is reasonably justifiable in a democratic society and relied on Osawe v. The Registrar of Trade Unions [1985] 1 NWLR (Pt. 4) 755; RTNACHPN v. MHWUN [2008] 2 NWLR (Pt. 1072) 575; and NUEE v. BPE [2010] 7 NWLR (Pt. 1194) 538. In response to that, the claimants submitted that these three authorities are not on all fours with the instant case. That in Osawe v. Registrar Trade Unions (supra) the decision of the Supreme Court was on section 3(1) and (2) and section 5(5) of the Trade Unions Act. In that case, the apex Court held that that section of the Trade Unions Act was necessarily and reasonably justifiable so as to ensure order in the chaotic proliferation of trade unions, which was the practice before the promulgation of the law, referring to the dictum of Kazeem, JSC at page 763 paras F – G. To the claimants, the facts of RTNACHPN v. MHWUYN [2008] 2 NWLR (Pt. 1072) 575 are in pari materia with that of Osawe v. Registrar of Trade Unions, which was a decision on sections 3(1) and (2) and 5(4) of the Trade Unions Act. That the case of NUEE v. BPE (supra) is a decision of the Supreme Court on whether the Trade Disputes (Essential Services) Act is in conflict with section 40 of the 1999 Constitution. In the instant case, the claimants submitted that section 3(3) and (4), which stops a class of staff from being a member of or holding office in a trade union, is in conflict with section 40 of the Constitution, and is not reasonably justifiable in a democratic society so as to bring it under section 45 of the 1999 Constitution. That the facts of this case are different from the facts of the three cases supra. From the totality of the processes, oral testimony of the claimants’ witness and the submissions of counsel, two main issues call for determination: whether the claimants are projection of management so as to preclude them from being members of JUSUN Anambra State Branch; and if the answer to this question is in the affirmative, whether thereby their fundamental rights under Chapter IV of the 1999 Constitution have been infringed upon. To be able to properly address the first issue, it is worthwhile to have recourse to the diverse labour jurisprudence regarding the discourse on when an employee can be termed a projection of management so as to be precluded from joining a union. Section 3(3) and (4) of the Trade Unions Act is of course the starting point. The said section provides that – (3) No staff recognized as a projection of management within the management structure of any organization shall be a member of or hold office in a trade union, whether or not the members of that trade union are workers of a rank junior, equal or higher than his own, if such membership or the holding of such office in the trade union will lead to a conflict of his loyalties to either the union or to the management. 4) For the purposes of subsection (3) of this section, a person may be recognised as a projection of management structure if his status, authority, powers, duties and accountability which are reflected in his conditions of service are such as normally inhere on a person exercising executive authority, whether or not delegated, within the organization concerned. One quick point regarding the submission of the defendant on section 3(3) and (4) of the TUA. The defendant had cited Chief V. A. Odunaiya’s book, Law and Practice of Industrial Relations in Nigeria at pages 139 – 140 while discussing on who may unionize within an enterprise threw a light on the meaning of projection of management in the following words – There are just too many shades of opinion on the matter. However, this matter has been squarely dealt with by the Trade Unions (Amendment) Act. No. 22 of 1978 which provides that for the avoidance of doubt, no executive or senior staff shall be member of or hold office in a trade union whose members are workers of a rank junior to his own, but such executive or senior staff may form and be members of or hold office in trade unions of workers of equal or higher rank than his own. The Act defined an “executive or senior staff” as members of staff recognized as a projection of management, within the management structure, in terms of status, authority, powers, duties and accountability, as are reflected in the conditions of service and by virtue of which the membership of a trade union of junior staff grade may lead to a conflict of loyalties to the union or to the management. (Underlining is the defendant’s.) The objection to this quotation lies in the reference to the Trade Unions (Amendment) Act. No. 22 of 1978 upon which the learned author based his conceptualization of the phrase ‘projection of management’ as can be seen from the underlined portion of the quotation. This is because section 1 of the Trade Unions (Amendment) Decree No. 86 of 1979 amended the provision of the Trade Unions (Amendment) Act. No. 22 of 1978 to what is currently in section 3(3) and (4) of the TUA. A conceptualization based on a repealed or amended legislation can hardly be helpful in the determination of the issues at hand. Professor Uvieghara in his book, Labour Law in Nigeria (Malthouse Press Ltd: Lagos), 2001 at page 322 while espousing on section 3(3) and (4) of the TUA had this to say – The effect of these provisions would seem to be that a management staff is totally prohibited from being a member of any trade union only where such membership will lead to a conflict of his loyalty either to the union or his employer. It is clear that there is no blanket prohibition of membership of trade unions of all management staff. The learned author then went on to cite National Union of Petroleum and Natural Gas Workers v. NNPC unreported Suit No. LD/13/83 (High Court of Lagos State) where Ayorinde J. (as he then was) held that the position of each management staff must be considered in the light of his status, authority, powers, duties and accountability and each case must be treated separately. In the words of Ayorinde J. (as he then was) – On the whole I conclude that the best approach to the matter will be to take the case of a staff and to test it as a separate claim. It is impossible to make a blanket ruling that the position held by certain staff will not lead to a conflict of loyalty. Management staff is determined, not by the whim of an employer, but by considering whether the status, authority, duties and accountability of an individual employee are such as are the normal attributes of an employee who exercises executive authority. Section 7(6) of the National Industrial Court Act 2006 permits this court to have regard to international best practice when adjudicating. It may, therefore, be worth the while to consider how the International Labour Organisation (ILO) has grappled with the issue. Ordinarily, the ILO does not frown at restrictions placed on senior officials and public servants holding managerial or supervisory positions of trust. To the ILO, therefore – …to bar these public servants from the right to join trade unions which represent other workers is not necessarily incompatible with freedom of association, but on two conditions, namely that they should be entitled to establish their own organizations, and that the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities. See the ILO text, Freedom of Association and Collective Bargaining (International Labour Conference, 81st Session), 1994, paragraph 57 at page 28. The ILO in its publication, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (1996), Fourth (revised) edition at paragraphs 230 – 232 at page 50 re-echoed the stance they took in the above quotation. What all these sources tell is that it is acceptable to place restrictions/limitations on the rights of senior officers in the public service to join unions if they are projections of management and that thereby there will be a conflict of loyalty either to the union or to the employer. However, in determining whether employees are a projection of management, the enquiry must be on a case by case basis, as Ayorinde J. (as he then was) suggests in the case of National Union of Petroleum and Natural Gas Workers v. NNPC (supra). The question that calls for determination, therefore, is whether the claimants in the instant case, and on a case by case enquiry, can be said to be a projection of management as to warrant their exclusion from being members of JUSUN. In other words, are they occupying offices that dictate that there would be conflict of loyalty either to JUSUN or to their employer? What this means is that we must first determine the respective offices they occupy before we can decide whether they are a projection of management. A look at all the processes together with the oral testimony of the claimants will reveal that except for the 1st and 2nd claimants, the offices of the claimants are not revealed although paragraph 14 of the statement of facts describes the 4th claimant, Victor Obianyo, as Chief Admin. Office – Confidential Department. The same paragraph 14 describes the 2nd claimant as Deputy Director, Litigation Department. In the letter of 4th May 2009 with Reference No. JSC/AN/AD.87/1/484 which the claimants want this court to set aside as per relief e) in their claims, the 1st claimant is described as Head of Administration and the 2nd claimant as Deputy Director Litigation. In the oral testimony of the 1st claimant who testified in person for the claimants, the 1st claimant acknowledged that he is a Deputy Director (Administration) on Grade Level 15. From all of this, it is not in dispute that the 1st claimant is Deputy Director (Administration) as well as the Head of Administration. It is also not in dispute that the 2nd claimant is Deputy Director Litigation. Only paragraph 14 of the statement of claims describes the 4th claimant as Chief Admin. Officer – Confidential Department. There is no piece of evidence supporting this fact in the processes filed; neither was it supported by the oral testimony of the 1st claimant. This means that only the offices of the 1st and 2nd claimants were disclosed and proved and which can be the subject of the present enquiry i.e. whether they are a projection of management. As for the 3rd – 8th claimants, since their offices were not disclosed and proved, there can be no enquiry as to whether they are a projection of management. The 1st claimant in his testimony acknowledged that as Deputy Director, he is a member of the Personnel Management Board. Before this, he testified that as Deputy Director, he takes orders from the chief Registrar on matters of Administration and either implements same or directs the implementation of the said directives. Despite this testimony, the argument of the claimants is that both 1st and 2nd claimants cannot be said to be projections of management. From the case law and other authorities cited earlier, the criteria for determining whether an employee is a projection of management are – 1. Whether the employee exercises senior managerial or policy-making responsibilities. 2. Whether the status, authority, duties and accountability of an individual employee are such as are the normal attributes of an employee who exercises executive authority. Applying these two criteria, I am of the view that the 1st and 2nd claimants fit the bill and I hereby hold that they are projections of management for purposes of section 3(3) and (4) of the TUA. Having held that the 1st and 2nd claimants are projection of management, the second issue to be determined is whether thereby section 3(3) and (4) of the TUA is in conflict with section 40 of the 1999 Constitution as well as section 9(6)(a) and (b) and (i) and (ii) of the Labour Act. A further issue is whether thereby the decision of the defendant vide its letter of 4th May 2009 is in breach of sections 36(1) and (2) and 40 of the 1999 Constitution as well as section 9(6)(a) and (b) and (i) and (ii) of the Labour Act. All these sections have been variously quoted in the addresses of counsel. In particular, section 40 of the 1999 Constitution provides for the right to assemble freely and associate with other persons, and in particular the right to form or belong to any trade union for the protection of one’s interests. Section 40, although a constitutional provision, actually gives effect to the ILO prescription of freedom of association; in which event, Nigeria thereby complies with its public international law obligation given its membership of the ILO. Section 9(6)(a) and (b) and (i) and (ii) of the Labour Act seeks to reinforce the constitutional right in section 40 and also thereby reinforces the ILO obligation regarding the freedom of association. However, this constitutional right is not an absolute right; just like the ILO’s freedom of association. By section 45 of the 1999 Constitution, the right enshrined in section 40 can be restricted and indeed derogated from. Specifically, nothing in sections 40 shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons. If the right enshrined in section 40 of the 1999 Constitution is not absolute, it means that it can admit of exceptions. This much the ILO has done at the international level regarding the freedom of association; and it is this international limitation of the freedom of association that has been given domestic force in section 3(3) and (4) of the TUA. The point is that there is nothing fundamentally wrong with section 3(3) and (4) of the TUA to warrant the argument of the claimants that it is unconstitutional. ILO jurisprudence permits limitation on the freedom of association; so, if Nigeria, in keeping with its public international law obligations given its membership of the ILO, passes a provision in the nature of section 3(3) and (4) of the TUA then Nigeria cannot be wrong. Section 3(3) and (4) is a provision that is not necessarily incompatible with the freedom of association and so is reasonably justifiable in a democratic society. On the whole, therefore, I hold that the 1st and 2nd claimants are management staff and so are prohibited from being member of JUSUN. Their membership will lead to a conflict of loyalty either to the union or their employer. The last issue is whether section 36 of the 1999 Constitution was breached when the meeting that led to writing the letter of 4th May 2009 was held. The claimants argued that they ought to have been invited to the said meeting, and that failure to so invite them meant that their right as enshrined in section 36 has been violated. The claimants were not standing trial; neither were they under any enquiry. The meeting that led to the letter of 4th May 2009 was meant to take a simple policy decision as to the necessity of staff of the Judiciary of Anambra State who are a projection of management continuing as members of JUSUN. That the 1st and 2nd claimants were specifically named did not in any way suggest that they were under trial to warrant them being given a hearing. A person is entitled to fair hearing only when there is a hearing by a court or tribunal. The meeting that gave rise to the 4th May 2009 letter was not a hearing by a court or tribunal to warrant the activation of the right to fair hearing under section 36 of the 1999 Constitution. The argument of the claimants that they were not given fair hearing before the letter of 4th May 2009 was written is, therefore, not tenable. I consequently hold that sections 36(1) and (2) and 40 of the 1999 Constitution as well as section 9(6)(a) and (b) and (i) and (ii) of the Labour Act were not breached when the letter of 4th May 2009 was written by the defendant. On the whole and for all the reasons adduced in this judgment, I hereby hold that the case of the claimants lacks merit and is, therefore, dismissed. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip